South of South Street Neighborhood Ass'n v. Philadelphia Zoning Board of Adjustment
54 A.3d 115
Pa. Commw. Ct.2012Background
- Dung Phat LLC owns a 138,866-square-foot property in a G-2 Industrial district on a block bounded by Washington Ave, 24th St, Carpenter St, and 23rd St; the surrounding block includes residential and commercial uses.
- Dung Phat sought to use the property for a shopping center with a supermarket, laundromat, and up to fifty retail stores; L&I denied the permit, and the ZBA affirmed denial.
- Dung Phat later sought zone variances for consolidation, multiple tenant spaces, a 119-space parking lot, and various structural changes; ZBA denied earlier applications and then granted variances subject to planning conditions.
- ZBA ultimately granted variance relief on January 12, 2010, with conditions including a four-foot front wall, a trash enclosure, and deliveries/trash pickup from the parking lot only.
- Association of South of South Street Neighborhood and residents appealed to the trial court, which affirmed the ZBA; issues include standing, res judicata, unnecessary hardship, public welfare/congestion, and whether the variance is minimal.
- The majority concludes the Association has standing and upholds the ZBA’s findings and the variance; the dissent would reverse on the hardship findings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does the Association have standing to appeal? | Association challenged standing but participated without objection. | Association lacks standing and is not aggrieved. | Association has standing; appeal proceeded on merits |
| Is the ZBA’s decision barred by res judicata? | Changes in circumstances render prior decisions insufficiently controlling. | Identities of claim, party, and relief suffice to apply res judicata. | Res judicata does not bar consideration; changed circumstances exist |
| Did Dung Phat prove unnecessary hardship justifying a variance? | Two grounds: need for extensive remodeling for industrial use; failed long-term sale attempts indicate hardship. | Evidence supports hardship: property not suitable for current use and sale efforts indicate lack of value for permitted uses; also impacts on public welfare minimal. | Yes: hardship shown; proposed use justified as minimum variance necessary |
| Did the ZBA properly consider public welfare, neighborhood character, and congestion criteria? | Variance will alter neighborhood character and could increase congestion; minimal evidence to counter. | ZBA considered congestion and neighborhood impact within overall public-welfare analysis; district context allows change toward commercial use. | ZBA properly weighed concerns; no error in considering these factors |
Key Cases Cited
- Thompson v. Zoning Hearing Board of Horsham Township, 963 A.2d 622 (Pa. Cmwlth. 2009) (standing may be shown by participation without objection)
- Baker v. Zoning Hearing Bd. of West Goshen Twp., 367 A.2d 819 (Pa. Cmwlth. 1976) (aggrievement and standing concepts in zoning appeals)
- Serban v. Zoning Hearing Bd. of City of Bethlehem, 480 A.2d 362 (Pa. Cmwlth. 1984) (evidence of hardship and land use value considerations)
- East Torresdale Civic Ass’n v. Zoning Bd. of Adjustment of Philadelphia Cnty., 639 A.2d 446 (Pa. 1994) (three key requirements for variances; hardship, public welfare, minimum variance)
- Taliaferro v. Darby Township Zoning Hearing Board, 873 A.2d 807 (Pa. Cmwlth. 2005) (unnecessary hardship standards: three alternative showings)
- City of Philadelphia Zoning Board of Adjustment v. Earl Scheib Realty Corp., 301 A.2d 423 (Pa. Cmwlth. 1973) (hardship evidence; saleability as evidence of hardship)
- Rees v. Zoning Hearing Board of Indiana Township, 315 A.2d 317 (Pa. Cmwlth. 1974) (active, prolonged testing of marketability required)
- Sweeney v. Zoning Hearing Bd. of Lower Merion Twp., 626 A.2d 1147 (Pa. 1993) (hardship considered against permitted uses)
- Arter v. Philadelphia Zoning Board of Adjustment, 916 A.2d 1222 (Pa. Cmwlth. 2007) (neighborhood character and uses considerations under 14-1802(1)(c))
- Pennsy Supply, Inc. v. Zoning Hearing Bd. of Dorrance Twp., 987 A.2d 1243 (Pa. Cmwlth. 2009) (credibility and weight of evidence in zoning findings)